Opinion
Rehearing Denied June 10, 1931
Hearing Granted by Supreme Court July 16, 1931
Application by the People for a writ of mandate prayed to be directed to the Superior Court in and for Los Angeles County.
Demurrer to petition sustained, and proceeding dismissed.
COUNSEL
Buron Fitts, Dist. Atty., Tracy Chatfield Becker, Grant B. Cooper, and Willard W. Burgess, Deputies Dist. Atty., all of Los Angeles, for petitioner.
Everett W. Mattoon, Co. Counsel, and S.V.O. Prichard, Deputy Co. Counsel, both of Los Angeles, for respondent.
James Donovan, of Los Angeles, amicus curiae.
OPINION
CONREY, P.J.
Respondent Superior Court demurs to the petition for writ of mandate herein upon the ground that said petition does not state facts sufficient to constitute a cause of action or entitle the petitioner to a writ of mandate against respondent. On September 30, 1930, an indictment was returned in the Superior Court of Los Angeles county, charging, or purporting to charge, one Johnson with the crime of perjury. Johnson demurred to the indictment on the ground that the facts therein alleged did not state a public offense, and upon other grounds stated in the demurrer. The demurrer having been overruled, the defendant pleaded not guilty, and the case was brought before the court for trial. A jury was duly impaneled and sworn, and the trial proceeded, to the extent that witnesses were sworn and testified and the prosecution rested its case. Thereupon the defendant filed a written motion for directed verdict and for dismissal of the action upon various grounds stated, and particularly the defendant moved that the court dismiss the action, for the reason that the indictment did not allege facts that would constitute the crime of perjury, and also moved that the court either instruct the jury to return a verdict of not guilty or dismiss the action. Thereupon the court entered an order dismissing the indictment and discharging the jury from further consideration of the cause. The petitioner herein does not set forth any copy of said order made by the court, but does show by attached exhibit an oral statement by the judge to the effect that he was going to grant the motion to dismiss the indictment, and stated: "The defendant is discharged and the bond is exonerated." Thereupon the court informed the jury that he had dismissed the indictment and discharged the defendant, and that the duties of the jurors were at an end. The petition herein further alleges that the court has refused to proceed further with the trial of said cause or to take any further proceedings therein whatsoever. It is alleged in the petition herein that the said actions and omissions of the Superior Court are without any authority of law, and that the order discharging the jury without verdict is void. Wherefore petitioner prays that a peremptory writ issue commanding said court to vacate said order dismissing said indictment and discharging the jury and to reassemble said jury and proceed with the trial of said cause to verdict and judgment.
It is contended by counsel appearing as amicus curiae that the indictment did not state facts sufficient to constitute a charge of the crime of perjury. Upon that question we do not express any opinion. Counsel for respondent, in support of their demurrer, stress the point that, even if the indictment was sufficient, and even if the court erred in its ruling on that question, the case presented here is not one in which the writ of mandate should issue.
There seems to be no doubt that as applied to judicial proceedings the writ of mandate is the counterpart of the writ of prohibition. Code Civ.Proc. § 1102. It follows that, as the writ of prohibition will arrest the proceedings of a court, when such proceedings are without or in excess of the jurisdiction of the court, so, also, will the writ of mandate compel such court to proceed in the exercise of its jurisdiction when the court has refused to act in the exercise of the jurisdiction of such tribunal. An illustration of this rule is found in People v. Superior Court, 64 Cal.App. 770, 222 P. 864. In that case it appeared that the respondent court refused to accept jurisdiction of an appeal from a justice’s court in a criminal action, and dismissed the appeal, on the ground that the court was without jurisdiction thereof because the appeal was not taken within the time allowed by law. Respondent had reached that conclusion, notwithstanding that the appeal had been taken within fifteen days after rendition of judgment and in accordance with the provisions of section 1467 of the Penal Code. This court being of the opinion that the right of appeal in the case was governed by said section 1467, the writ of mandate was issued requiring that the respondent court, in the exercise of its jurisdiction, proceed to determination of said appeal. In considering the effect of that decision, it is to be observed that the lower court in making its decision, whereby it refused to recognize the appeal, based its action directly upon the proposition that there was no appeal pending, and that for that reason there was no basis for the exercise of appellate jurisdiction. This will be found to be typical of the cases in which mandamus has issued to compel action in causes wherein courts have refused to act.
But in the instant case the refusal of respondent court to proceed further in the trial of the action was based upon a prior conclusion upon a question which was not a question of jurisdiction. The court in discharging the defendant did not deny that it was acting in a cause then pending, and did not dismiss the action for want of jurisdiction. If thereafter the court refused to act further in the case, such refusal was based not so much (if at all) upon jurisdictional grounds as upon the ground that the order of discharge had completely disposed of the action. The ruling of the court which resulted in the order of discharge, even if erroneous, remained as the law of the case. So long as that order remained in force, its effect was such that the court had no authority to reassemble the jury. But such want of authority was merely and only the incidental legal result of the prior ruling of the court whereby, in the exercise of its admitted jurisdiction, it had decided that the indictment did not state facts constituting the crime of perjury.
We have given attention to the decision in People v. Superior Court of Fresno County, 39 Cal.App. 324, 178 P. 730, cited by petitioner as a case parallel to the case at bar, and wherein a writ of mandate was granted, requiring the lower court to proceed with the trial of a criminal action, notwithstanding that respondent court, during the progress of the trial, had held that the information did not state a public offense, and for that reason had discharged the jury. That decision is entitled to particular respect, as a decision of the court and also as stating the carefully considered opinion of three justices, all of whom later became members of the Supreme Court. Nevertheless, and with some diffidence, we venture to say that, if indeed the facts of the Fresno County Case were in all essentials the same as in the case here (which respondent denies), then we think that the decision in that case was not in accord with the generally accepted limitations upon the use of the writ of mandate to control the power of decision which belongs to nisi prius courts in the exercise of their jurisdiction.
The demurrer to the petition herein is sustained, and the proceeding is dismissed.
We concur: HOUSER, J.; YORK, J.